Kenneth Michaels, Jr., Bauch & Michaels, LLC, Chicago
312-588-5000 | Email Kenneth Michaels, Jr.
Res Judicata Ends Long-Running Dispute Over Condominium Soundproofing
In February, the Illinois Appellate Court affirmed dismissal of a unit owner’s efforts, after losing on a directed verdict at trial, to relitigate his argument that the association had an obligation to install soundproofing in the common elements between his unit’s ceiling and the floor in the unit above. Chellappa v. Summerdale Court Condominium Ass’n, 2026 IL App (1st) 240415-U. Between losing the first trial and filing the second complaint, the plaintiff attempted to create new bases for his claims by sending a demand for “repairs” to be made and by filing a Fair Housing Act administrative complaint. However, the plaintiff’s efforts failed with the appellate court affirming dismissal of two breach of contract and breach of fiduciary duty counts as res judicata, looking to the “operative facts” underlying the original and new claims. 2026 IL App (1st) 240415-U at ¶31. Regarding the two discrimination counts, the appellate court affirmed dismissal on a different basis than that applied by the trial court. It reached the conclusion that even giving the plaintiff every benefit of doubt, the plaintiff was a day late in filing the complaint presenting his federal discrimination claims.
Facts
The 2014 Lawsuit
Beginning in 2014, the plaintiff-unit owner tried to force his condominium association to install soundproofing between the ceiling of his unit and the unit above him under the argument that there was a defect in the soundproofing resulting in the plaintiff suffering migraine headaches. 2026 IL App (1st) 240415-U at ¶2. When the association refused to install new soundproofing, he sued the association for various claims, including declaratory judgment, breach of fiduciary duties, and breach of contract. 2026 IL App (1st) 240415-U at ¶8. The plaintiff sought declaratory relief that the board was obligated to adjudicate noise complaints, to maintain a noise barrier between units, and to facilitate acoustic testing between units. Id. The fiduciary duties allegedly breached included a duty to maintain the common elements in such a manner that a unit does not become a nuisance to other units. 2026 IL App (1st) 240415-U at ¶9. The breach of the declaration and bylaws (contract) allegations were based on the board’s refusal to repair the common elements to improve noise resistance, refusal to adjudicate noise disputes, and refusal to sue the upstairs unit owner to stop him from making excessive noise. Id.
The breach of contract claim was dismissed before trial and directed verdict was entered for defendants on the other claims at trial. 2026 IL App (1st) 240415-U at ¶10. No appeal was taken.
The 2016 Federal Lawsuit
About six months later, the plaintiff filed a new lawsuit in federal court under the Fair Housing Act (FHA), 42 U.S.C. 3601, et seq., claiming that the association and its directors engaged in race, color, and national origin discrimination relating to the noise from the upstairs unit. 2026 IL App (1st) 240415-U at ¶12. The district court entered summary judgment for the defendant association under res judicata because no basis existed from the plaintiff to split his claims from the 2014 lawsuit. 2026 IL App (1st) 240415-U at ¶13. The Seventh Circuit affirmed.
The 2023 Lawsuit
In May 2020, the plaintiff complained to the association’s board in writing that a defect in the interior of the ceiling amplified routine noise such as footsteps resulting in “substantial, abnormal, and significant sound pressure” in the ceiling that caused the plaintiff severe ear pain and migraines. 2026 IL App (1st) 240415-U at ¶15. In June 2020, the association rejected the request to do maintenance work in the ceiling, demanding an advance payment for the work the plaintiff wanted. 2026 IL App (1st) 240415-U at ¶16. The association also sent the plaintiff a violation notice for his efforts to talk to the upstairs neighbor to negotiate a resolution and prohibited him from contacting the neighbor. 2026 IL App (1st) 240415-U at ¶17.
In July 2020, the plaintiff filed a housing discrimination complaint with the federal Department of Housing and Urban Development, which then referred the complaint to the Illinois Department of Human Rights (IDHR). 2026 IL App (1st) 240415-U at ¶18. The plaintiff claimed that he was being discriminated against because of his national origin and his race. Id. In June 2021, IDHR issued a dismissal of the complaint for lack of substantial evidence. Id.
In May 2023, the plaintiff filed the complaint against the association in the Circuit Court of Cook County, which gave rise to the current appeal. 2026 IL App (1st) 240415-U at ¶19. Count I alleged breach of fiduciary duty in refusing to perform or pay for the repairs to the ceiling. 2026 IL App (1st) 240415-U at ¶20. Count II alleged breach of contract (relying on the declaration, bylaws, and rules and regulations) in refusing to repair the interior of his ceiling and pay for the repairs and refusing to allow plaintiff to do the repairs to the interior of his ceiling. Id. Counts III and IV were based on violations of the Fair Housing Act, however, the plaintiff now claimed that his migraine headaches constituted a handicap or disability under §3602(h) of the FHA. 2026 IL App (1st) 240415-U at ¶21. Count III alleged that the May 2020 letter to the board constituted a request for a reasonable accommodation, and the denial of the request constituted disability discrimination. 2026 IL App (1st) 240415-U at ¶22. Count IV argued that the prohibition from discussing the noise complaints with the upstairs neighbor prohibited him from exercising his rights. Id.
The association moved to dismiss on three bases: (a) all four counts were barred by res judicata; (b) the discrimination claims were barred by the two-year statute of limitations; and (c) the discrimination claims failed to exhaust administrative remedies. 2026 IL App (1st) 240415-U at ¶23. The circuit court dismissed Counts I and II as res judicata and dismissed Counts III and IV for failure to exhaust administrative remedies. 2026 IL App (1st) 240415-U at ¶24.
Analysis
Illinois courts apply res judicata when there has already been a final judgment entered on the merits of claims by a competent court. 2026 IL App (1st) 240415-U at ¶28, citing River Park, Inc. v. City of Highland Park, 184 Ill.2d 290, 703 N.E.2d 883, 889, 234 Ill.Dec. 283 (1998). The bar extends to not only what was decided but “matters that could have been decided in that suit.” 2026 IL App (1st) 240415-U at ¶29, citing River Park, 703 N.E.2d at 889. Res judicata applies when there has been (1) a final judgment on the merits, (2) identification of the causes of action, and (3) identification of the parties. Id.
The appellate court found that as to Counts I and II, the first and third prongs were easily met. 2026 IL App (1st) 240415-U at ¶30. The fact that the members of the board changed did not impact the analysis because “the identity of interest, not the nominal identity of the parties, controls.” Id., citing Carlson v. Rehabilitation Institute of Chicago, 2016 IL App (1st) 143853, ¶24, 50 N.E.3d 1250, 401 Ill.Dec. 768. As to the second prong, the identity of the causes of action, the Illinois courts ask whether the claims arise from a “single group of operative facts,” rather than the theories alleged. 2026 IL App (1st) 240415-U at ¶31, citing River Park, supra, 703 N.E.2d at 891.
The plaintiff argued that the claims in the second lawsuit arose from actions of the association that occurred subsequent to the adjudication of the first lawsuit. 2026 IL App (1st) 240415-U at ¶32. The appellate court found that the plaintiff’s contention was not without merit. Id. Although the court “could nibble at the margins to find differences in the factual settings, in sum and substance, both the 2014 complaint and the one under review allege that the Association breached its contractual and fiduciary duties by refusing to repair (or at least pay for the repair of) the alleged ‘defect’ in the soundproofing between [plaintiff’s] ceiling and his upstairs neighbor’s floor.” 2026 IL App (1st) 240415-U at ¶35. The circuit court’s dismissal of Counts I and II was affirmed. 2026 IL App (1st) 240415-U at ¶37.
Regarding Counts III and IV, the appellate court agreed with the plaintiff that the exhaustion doctrine is not applicable to Fair Housing Act claims under 42 U.S.C. §3613(a)(2). 2026 IL App (1st) 240415-U at ¶41. However, it appears unresolved or at least arguable that the exhaustion doctrine applies under Illinois law, so the appellate court chose not to affirm when there was not a clear and uncontroversial basis to do so. 2026 IL App (1st) 240415-U at ¶42.
Instead, the appellate court explored whether the plaintiff’s private civil action under Counts III and IV was commenced “not later than 2 years after the occurrence or the termination of an alleged discriminatory housing practice.” 2026 IL App (1st) 240415-U at ¶44, quoting 42 U.S.C. §3613(a)(1)(A). The court noted that “federal limitations periods generally are considered components of federal law that must be followed when entertaining federal causes of action.” Id., quoting Wellington Homes, Inc. v. West Dundee China Palace Restaurant, Inc., 2013 IL App (2d) 120740, ¶22, 984 N.E.2d 554, 368 Ill.Dec. 608.
The plaintiff filed the case on review on May 5, 2023. The plaintiff alleged that the latest date for the defendants’ discrimination occurred on June 1, 2020. 2026 IL App (1st) 240415-U at ¶46. On its face then, the complaint was clearly filed more than two years after the last discriminatory act. However, federal law applies a tolling provision when the plaintiff applies for administrative relief. “Such 2-year period shall not include any time during which an administrative proceeding under this subchapter was pending with respect to a complaint or charge under this subchapter based upon such discriminatory housing practice.” Id., citing 42 U.S.C. §3613(a)(1)(B).
The appellate court engaged in a detailed analysis of dates and calculations to reach the conclusion that the plaintiff filed his complaint 731 days after the last discriminatory act, when he needed to file within 730 days (365 days x 2 years) and was therefore a day late in filing his complaint. 2026 IL App (1st) 240415-U at ¶53. The appellate court noted that the complaint should have been filed on a Thursday, so weekends did not factor in the calculation and, also, the period did not involve any leap year calculations. 2026 IL App (1st) 240415-U at ¶¶55 – 56.
Having completed the analysis, the appellate court then expressed that it had “serious doubt that [the plaintiff] was entitled to any tolling at all” because the administrative complaint was based on race and national origin and made no mention, as alleged in the circuit court complaint, of a disability. 2026 IL App (1st) 240415-U at ¶57. The circuit court complaint made no mention of race or national origin and is focused on disability. Therefore, it is more likely that the plaintiff’s lawsuit was not one day late but rather was eleven months late. 2026 IL App (1st) 240415-U at ¶60. However, even giving the plaintiff the most generous calculation, the complaint was still too late.
The appellate court went further analyzing the plaintiff’s arguments or potential arguments that the complaint was against the association’s unlawful practice of discrimination rather than any particular act of discrimination. 2026 IL App (1st) 240415-U at ¶62. However, the complaint was specific in Counts III and IV as to acts of discrimination against the plaintiff in refusing to fix the problem with the ceiling, in refusing accommodation, and in prohibiting the plaintiff from communicating with his neighbor about the ceiling. 2026 IL App (1st) 240415-U at ¶64. The court analyzed that while the plaintiff tried to argue that the association engaged in a continuing violation, the effects of the alleged discriminatory acts show a continuing harm or continuing injury, not a continuing violation. 2026 IL App (1st) 240415-U at ¶¶65 – 66. Citing several cases, the appellate court found it well-settled that “ ‘the continual ill-effects arising from a single (or multiple) past violation[s]’ does not transform discrete acts of discrimination into a continuing violation.” 2026 IL App (1st) 240415-U at ¶67. The appellate court affirmed dismissal of Counts III and IV on grounds other than those relied on by the trial court.
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